The District of Columbia just filed the clearest possible admission of panic I have seen in a Second Amendment case in years — and the DC Court of Appeals just denied their motion cold.
Here’s what happened. On March 5, 2026, a three-judge panel of the DC Court of Appeals ruled 2–1 in Benson v. United States that magazines holding more than ten rounds are protected arms under the Second Amendment and cannot be banned. Judge Joshua Deahl authored the majority. Chief Judge Anna Blackburne-Rigsby dissented. The holding was exactly what the Heller-Bruen methodology demands: magazines that hold more than ten rounds are in common and ubiquitous use by law-abiding Americans — accounting for roughly half of all magazines in civilian hands — and the government bears the burden of proving they are dangerous and unusual. DC cannot meet that burden. Case over.
DC’s Panic Motion — and Why It Backfired
Within days of that ruling, the District of Columbia filed a motion asking the DC Court of Appeals to do two things simultaneously: first, strip the decision of its precedential value so nobody could use Benson as authority; and second, fast-track an en banc rehearing to reverse the panel before the ruling could settle in. That is not a legal strategy. That is a fire alarm.
Benson’s lawyer, responding to the District’s emergency motion, made the obvious point: if the DC magazine ban were truly causing an imminent public safety crisis, the flood of magazines into the District would already have happened. The Trump DOJ — under U.S. Attorney Jeanine Pirro, Attorney General Pam Bondi — filed a motion back in September 2025 stating that the magazine ban was unconstitutional under the Second Amendment and announcing non-enforcement. That was six months ago. No surge. No crisis. The DC City Council has known about this situation since at least September and has done nothing. As Benson’s counsel put it, if the DC Council was truly facing a public safety emergency, they would have acted. Their silence speaks volumes.
The DC Court of Appeals agreed. They denied the District’s motion in its entirety. The precedential value of Benson stands. The petition for en banc rehearing will proceed in the normal course — no expedited treatment, no emergency bypass.
Why the Circuit Split Matters
I want to be precise about why this ruling is so strategically important, because it goes beyond one case in one city.
The courts of appeals that have ruled on magazine bans and assault-weapons bans are, without exception, the courts that serve the exact same blue-state politicians who passed those laws — the First Circuit out of Boston, the Fourth Circuit out of Maryland, the Seventh Circuit out of Chicago, the Ninth Circuit out of San Francisco. Those courts have uniformly upheld the bans. There has been no counterweight because the Fifth Circuit (Texas), the Eleventh Circuit (Florida), and other pro-Second Amendment circuits have no such bans to challenge. You cannot get a circuit split on laws that don’t exist in your jurisdiction.
The DC Court of Appeals is the highest court in the District of Columbia — the functional equivalent of a state supreme court deciding a federal constitutional question. Its ruling now sits in direct conflict with every federal circuit that has sustained a magazine ban. That is the circuit split the Supreme Court needs as a basis to grant cert. It is also precisely the result DC’s lawyers were trying to prevent by filing their panic motion in the first place.
The Road to SCOTUS
What happens next is straightforward. The DC Court of Appeals will invite the Trump DOJ to file a brief on whether en banc review should be granted. The Trump administration, which has already gone on record saying this law is unconstitutional, is unlikely to ask the full court to reverse a ruling it agrees with. If en banc review is denied, DC faces a binary choice: accept the loss and let Benson stand as precedent, or seek cert at the Supreme Court.
If DC seeks cert — and they may feel they have no choice — the Supreme Court can take the case on the circuit-split rationale. When the Court takes it, I see essentially zero chance we lose the magazine question under a faithful Heller-Bruen analysis. Standard-capacity magazines are ubiquitous. The historical record contains no tradition of banning commonly owned arms. The burden is on the government, and the government cannot carry it.
We have been waiting for a ruling outside the anti-gun circuit bubble to create this split. Benson just did it.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.